Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Benefits – In and out of the course of employment – Statutory provisions – Psychological injury – Stress claims – Validity and application of policies and guidelines – Judicial review – Compliance with legislation – Legislative intent – Standard of review – Patent unreasonableness
Downs Construction Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal),  B.C.J. No. 2035, 2012 BCCA 392, British Columbia Court of Appeal, October 4, 2012, P.D. Lowry, E.C. Chiasson and N.J. Garson JJ.A.
The appellants Downs Construction and Webster, the employer and coworker of the respondent Christianson, respectively, appealed from a petition for judicial review of a decision of the respondent Workers’ Compensation Appeal Tribunal (the “Tribunal”). Christianson and Webster worked for Downs. In January 2006, Christianson suffered a stress related injury as a result of the conduct of Webster while they were performing their duties for Downs. Christianson sued Downs and Webster. In their defence, Downs and Webster pleaded section 10 of the Workers’ Compensation Act, R.S.B.C. 1996, c. 492 (the “Act”), as a bar to a civil action in lieu of a claim under the Act where an injury arose out of and in the course of employment.
Christianson sought compensation under section 5.1 of the Act, as it then was, for an injury for mental stress arising out of and in the course of the worker’s employment. At the time, section 5.1 of the Act required a mental stress injury to be “unexpected.” The Workers’ Compensation Board (the “Board”) held the event giving rise to the injury was not “unexpected.” The Tribunal upheld the Board’s decision, finding that because the injury was not “unexpected” and not compensable, it did not arise out of and in the course of Christianson’s employment.
Downs and Webster applied for judicial review. On judicial review, the judge held the standard of review was patent unreasonableness. The judge reviewed at length the aspects of the Tribunal’s decision concerning section 5.1 and the elements of a compensable mental stress injury under the Act. The judge concluded that the Tribunal’s decision was within the defensible range of conclusions and, therefore, was not patently unreasonable. Downs and Webster argued that even if the injury was not “unexpected” it still arose out of and in the course of employment for the purposes of section 10 of the Act. The judge held that Downs’ and Webster’s arguments on judicial review, based on the Act at the time, would leave Christianson without a remedy either in tort or under the Act and would create a “black hole” for workers who are without a right to claim no fault benefits under the Act.
On appeal, the Court of Appeal noted that following the decision under appeal, section 5.1 was amended such that the event giving rise to a mental stress injury no longer needed to be “unexpected.” On the basis of section 5.1 as it was interpreted in the Tribunal’s decision and the lower court, the court held that the Tribunal’s and judge’s analysis of section 5.1 was premised on a misunderstanding of the “historic trade off” that underlies the workers’ compensation no fault scheme. Section 10 of the Act, having regard to the core policy underlying workers’ compensation, is not ancillary to the workers’ compensation scheme, but central to it. If there were no bar under section 10, then the integrity of the system would be compromised. The court referred to the legislative debates at the time of enactment of the former section 5.1 and held that it was not the legislative intent to allow employees to sue employers for the type of claims eliminated by section 5.1. That interpretation would undermine the core policy of the scheme by exposing employers to lawsuits based on the scope of compensable claims under the Act. This would result in uncertainty contrary to the purpose of the legislation.
The Court of Appeal held that Christianson made a claim under the Act and as part of her claim had to establish a number of facts, including that the event giving rise to the mental stress injury was “unexpected.” That fact was not established. The court rejected the contention that the finding that Christianson was not entitled to compensation must lead to the conclusion that her injury was not sustained in the course of and arising out of her employment. Whether the injury arose out of and in the course of employment is a question of fact, or at most, a question of mixed fact and law. Whether the event causing the injury was foreseeable is not causally connected to whether the injury arose out of and in the course of the employment. To interpret section 5 and section 5.1 of the Act in that manner would impose a construction that is at odds with the factual realities of the situation.
The Court of Appeal allowed the appeal. A finding that Christianson was not entitled to compensation under the Act did not necessarily lead to a finding that the injury was not sustained in the course of and arising out of employment. On that basis, the court substituted the Tribunal’s finding for a determination that Christianson’s mental stress injury arose out of and in the course of her employment, but that she was not entitled to compensation because the event giving rise to the injury was not “unexpected” as required by section 5.1.
This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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